CONTENT OF PROCEDURAL OBLIGATIONS (UNBIASED DECISION-MAKER) CB 441-556 Types of Bias: 1. Antagonism by DM during hearing to a party/counsel/witnesses a.

Balance: DM control of proceedings/keep on pace v. antagonism 2. Association b/w one party and DM 3. Involvement of DM in preliminary stages of decision a. e.g. DM has heard previous matter in same or another capacity [appeals]; been involved in investigation/decision to proceed 4. Attitude of DM towards outcome a. e.g. prejudging before all evidence is in (just avoid interviews as DM). Pelletier. Statutory Authorization of Bias Brosseau: Overlap in investigation/adjudication okay IF authorized by statute and Constitutional. o Not okay if unconst. E.g. prosecutor selecting adjudicating panel. MacBain. Const challenges are rare. This was fed & an obligation. o Not okay where same person investigates and adjudicates. Regie. Bias is individual, not entire agency. Future people in same position are not presumed biased. Manning. Manning: Previous bias of organization affects individuals, but not entire agency/not future people in same position. Same person should not wear multiple hats--investigate and adjudicate. Regie. But see Brosseau--okay if allowed in statute, subject to Const. MacBain: Bias where prosecutor also selects the members of the panel adjudicating the matter. Statutory problem under BOR b/c 1. fed statute and 2. case is about "obligations" Attitudinal Bias NOT bias if panel members made up mind before committee, in a tenure decision-normal for other profs to have ideas about the prof up for tenure prior to the tribunal itself. Paine. BIAS if DM member is/was complainant against same party on same issue. Great Atlantic & Pacific. o NOT BIAS if DM has previously expressed views on same general concept (desirability of mandatory retirement). Large. Pecuniary and other Material Interests Pecuniary interest must be direct. o NOT DIRECT: One DM was CEO of company supplying cables to a nuclear power plant. Energy Probe. o NOT DIRECT: Lawyers on ethics comm have interest in there being fewer lawyers/less competition. Pearlman.

Variations in Standard (Reasonable Apprehension of Bias <---> Closed mind) Rules against bias were extended to DMs not previously subject to them. But as the rules against bias are extended, the standard of what bias is varies with context. NOT BIAS for elected official as long as they are AMENABLE TO PERSUASION ("closed mind" test). Old St. Boniface Resident Assn. Must show PRE-JUDGMENT. o BIAS: "I will listen but not change my mind." Save Richmond Farmland Society. DISSENT: Wants a "closed, but not corrupt" standard for public officials-closed mind isn't biased in elected official, if not corrupt. Different bias tests depending on the stage at which DM is in: Nfld Tel Co. o During investigation: Amenable to persuasion test. No closed mind. o After hearing ordered: Reasonable apprehension of bias test. WEIRD rule. This is the same guy, and making a statement early on= great. Later = DQ that man! WEIRD. Pelletier (Chretien hearing on the advertising scandal; commisioner gave media interviews during the 9 months of hearings): o Nfld Tel Co sets a sliding scale between RAB and closed mind standard. o This is closer to RAB, but not all the way there. o DM should not talk to media during hearings. Making statements about "catastrophic" program show prejudging, when only 3 of 9 months of hearing/evidence have been presented. o BIAS. INDEPENDENCE Two types: institutional independence, and independence of individuals w/in institution o Higher standard of independence when LLSP is at stake, as always. Charter, s.11. Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; Principles of Independence (Valente): 1. Security of tenure - The essence of security of tenure for the purposes of s. 11(d) is a tenure, whether until an age of retirement, for a fixed term, or for a specific adjudicative task, that is secure against interference by the executive or other appointing authority in a discretionary or arbitrary manner. (Valente) 2. Financial security the essence is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence. (Valente) 3. Institutional independence the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function. (i.e. appointment of tribunal members) (Valente)

Alex Couture Inc Use RAB test to assess independence of judge/tribunal.

Institutional impartiality: "The apprehension of an informed person, viewing the matter realistically and practically, and having thought the matter through." o Part-time judge isn't RAB on it's own. What judge does off-duty might be.

CP v. Matsqui Members of Indian tax tribunal have no tenure, don't have a right to collect salary. Loses on all three Valente factors: o No tenure--appointed as hoc, could be fired ad hoc. o No financial security--no set pay, concern is it could be based on decisions o No institutional independence--Band Chiefs appoint the tribunal, and are a party to the tax issues before the tribunal Similar to MacBain, where same person prosecuted & selected adjudicators Regie DM has five year term; can be removed early, but only for cause, subject to independent review This is sufficient independence vis-a-vis security of tenure